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Exigency Of Patent Laws: The Indian Aspect

Patent is one of the most used, or rather abused terms that is associated with the domain of Intellectual Property. In words of WIPO, Patent is described as a patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem.´┐Ż Patents are one of the most prominent forms of intellectual property rights. Since they afford immense rights to their holders.

Some of the great patents of the past include James Watt's Steam Engines, I made a reference to this in week 1 and Thomas Edison's Light Bulb. Modern-day patents include those on internet of things that connect totally different devices located in different places.

Today patents also exist on immunogens, which are used to treat viral infections like Ebola. To receive protection as a patent, technical information regarding the invention must be disclosed to the public through the patent application. As discussed in the video, the patent application must clearly provide detailed description of the product or process in question to acquire protection as patent. This is also necessary to determine the involvement of Standard Essential Patent or SEP in the technology seeking patent.

Standard Essential Patent has an obvious meaning. It protects any technology that is essential to a standard product. It is in fact so essential that it is impossible to manufacture these products without using them; such as smartphones or tablets that require technologies covered by one or more SEPs.

Sometimes, certain products have a mandatory standard-compliance as well. We will be learning further about their impact on the market. A Single Patent Application under PCT allows a Patentable subject matter to receive patent protection in all the member countries at once. The international phase of patent application under PCT is followed by the national phase in each designated country within a designated time under the treaty.

In addition to International Application under PCT, Convention Application is another form of International Application for the member countries of Paris Convention. Under Convention Application, the priority date is claimed by filing the application in one of the parties of the convention, before moving forward with the countries individually, within a designated time under the convention.

Provisional Application or Preliminary Application can provide a priority date to the patent, even before the invention has matured and is filed before filing a standard patent application. This application should be detailed enough to secure protection for a prospective patent.

Standard Patent Application or Ordinary Application is a complete application for patent filed with the Patent Office without claiming priority from any application or without reference to any other application under process in the Patent Office.

When a parent application contains more than one patent application which has more than one patentable subject matter, it is protected under Divisional Application.

To encourage innovation, Patents are not permanently protected. Patent protection by most of the countries like India, US, etc. is done for a period of 20 years from the filing date of the application.

In some countries, however, this term can be extended as well. This is done through making improvements on the existing technology after filing the main application. Several countries oppose protection of improvements or modifications but others like US, India, etc. have provisions to allow continuation of the patent protection. PCT is also not opposed to a patent of addition.

Under Indian Law, it is referred to as Patent of Addition. A new improvement on a patented invention is protected through this; which is called Continuation-in-Part in US.

The accompanying would not qualify as patents:

  1. A creation, which is trivial or which claims anything clear or in opposition to the settled regular law. A development, the essential or planned utilization of which would be in opposition to law or ethical quality or harmful to general wellbeing.
  2. A disclosure, logical hypothesis, or numerical technique.
  3. A simple disclosure of any new property or new use for a known substance or of the simple utilization of a known cycle, machine, or mechanical assembly except if such realized cycle brings about another item or utilizes at any rate one new reactant.
  4. A substance acquired by a simple admixture coming about just in the collection of the properties of the parts thereof or a cycle for delivering such substance.
  5. A simple game plan or re-course of action or duplication of a known gadget each working autonomously of each other in its own specific manner.
  6. A strategy for agribusiness or agriculture.
  7. Any cycle for the restorative, careful, therapeutic, prophylactic demonstrative, helpful or other treatment of people or any cycle for a comparable treatment of creatures to deliver them liberated from illness or to expand their monetary worth or that of their items.
  8. A creation identifying with nuclear energy.
  9. A creation, which is basically, is customary information.

The case of Bajaj vs. TVS Motors, there involves the controversy regarding the unauthorised application of the patent of the DTSi. The case is very crucial regarding not only the financial stakes of the parties but also regarding the application of the doctrine of pith and marrow. The paper deals with the case study of the same, involving the facts, contentions, judgment and its analysis. This is one of the few patent cases in India that have been decided keeping in view the Doctrine of Equivalents, which is also termed as the doctrine of pith and marrow. Above all, the principles involved in arriving at the decision are also crucial.

In Novartis AG & Anr. Vs Natco Pharma Limited, the Delhi High Court vacated the interim order against NATCO following the revocation of the suit patent granted to Novartis with respect to Ceritinib used in treatment of lung cancer. Though Novartis filed an appeal before the IPAB, the Court held that the patent is considered to be invalid unless the decision is reversed by the IPAB.

The history of patent laws in India can be traced back to the 1850's. It was in the year 1856 when the first act regarding patents was enacted and was known as Act VI of 1856. The main objective of this act was to encourage the inventor's for inventing new and useful machinery and to make it public without fear of being copied by someone else. This act granted protection to new inventions for a time period of 14 years.

Patent laws in India are more than 150 years old and are being amended timely to cope-up with the current regime. The initiatory 1856 act has undergone several amendments over the years until completely repealed by the Patent and Design Act, 1911. This was the most considerable period for patent laws in India.

The Patent and Design Act, 1911 played its role for a significant period of time. But in the year 1947 India got its independence. After independence, it could be seen by law makers of the nation that the patent and design act, 1911 was insufficient in fulfilling its objectives. So there arose a need for changes in the 1911 Act which would be desirable in coping-up with the changing social, political and economic scenarios of India. After a thorough consultation, the act was amended in the year 1950(Act 32 of 1950).

The act after being amended was now fulfilling its objectives but as it's a known fact that 'Nothing is Perfect'; so, after the lapse of some year's there again arose a need for changes in patent laws. Ayyangar Committee was formed in 1957 for reviewing and examining patent laws and to advise the government for the same. Based on the recommendations of this committee, a separate act for Patents only was enacted in 1970 known as the Patents act, 1970 and came to force in the year 1972. The law relating to designs as provided in the Patent and Design Act, 1911 continued to be in force while every law relating to patents in the 1911 Act were repealed by the Patent Act, 1970.

Subsequently, India became a signatory to various international legal entities with an intent to strengthen its patent laws and to stand in the same band as other nations are standing in. In the year 1995 to become a member of TRIPS was a noteworthy step taken by Indian Government for fulfilling its objectives. Notably, India also became a signatory to the Paris Convention and later on signed the Patent Cooperation Treaty on 17th December, 1998.

As India became a signatory to TRIPS agreement, now India has to amend its patent laws to comply with the provisions of TRIPS. This was a contractual obligation which India is bound to follow. For fulfillment of this, in year 1995 India made some changes by way of an ordinance to its patent laws until some rigid changes/amendments were figured out.

The Patents (amendment) Act, 1999 was brought into force retrospectively from 1st January, 1995. By the effect of 1999 Act, applications for product patents were started to be filed in India. The 1999 amendment bring the most significant changes to patent laws of the nation. With new technologies on the boom, there is a significant need to introduce new laws for protection of those technologies and techniques. These applications for product Patents brought that slight difference.

The Patents act, 1970 was lastly amended by the Patents (amendment) Act, 2005. By way of this amendment India met its objectives to meet the standards enunciated in the TRIPS agreement. Grant of Exclusive marketing rights (EMR) were put to an end and the concept of compulsory licensing was brought forward.

Patent Cooperation Treaty:

The Patent Cooperation Treaty (PCT) is a worldwide patent law treaty, finished up in 1970. It gives a bound together method to filing patent applications to protect inventions in every one of its contracting states. A patent application recorded under the PCT is called an international application, or PCT application. The patent participation deal (PCT) is a multilateral arrangement gone into power in 1978.

Through PCT, a creator of a part nation contracting province of PCT can all the while acquire need for his/her development in all or any of the part nations, without documenting a different application in the nations of enthusiasm, by assigning them in the PCT application. All exercises identified with PCT are facilitated by (WIPO) arranged in Geneva.

So as to secure creation in different nations, it is needed to document a free patent application in every nation of enthusiasm; at times, inside a specified opportunity to get need in these nations. This would involve a huge venture, inside a brief timeframe, to meet expenses towards documenting expenses, interpretation, lawyer charges, and so forth Furthermore, it is accepted that because of the brief timeframe accessible for settling on the choice on whether to document a patent application in a nation or not, may not be very much established.

Creators of contracting conditions of PCT then again can at the same time acquire need for their innovations without recording separate application in the nations of premium; along these lines, sparing the underlying ventures towards documenting charges, interpretation, and so forth Moreover, the framework gives any longer an ideal opportunity to documenting patent application in the part nations.

The time accessible under Paris show for making sure about need in different nations is a year from the date of introductory documenting. Under the PCT, the time accessible could be as much as least 20 and most extreme 31 months. Further, a designer is additionally profited by the hunt report arranged under the PCT framework to be certain that the guaranteed development is novel. The designer could likewise decide on starter assessment before documenting in different nations to be doubly secure with the patentability of the development.

Current Scenario:
The present-day position of India regarding the patent law regime could be best acknowledged by taking into account the role played by the government. The sine qua non of the Government of a country is to guarantee the well-being of its citizens and to promote the social, economic, and cultural development. It must be considered as a duty of the government to also ensure that the intellectual property system of the country strives for those goals.

All provisions regarding patent laws are cited in the Patent (amendment) Act, 2005 and Patent rules, 2020. Under section 159 of the act, the central government is authorized to create rules for carrying out the act and regulating patent administration. These rules were being amended time to time for the growing scope of patents.

The head office of patent offices is at Kolkata with branch offices in Chennai, Mumbai and New Delhi. The Controller General of Patents, Designs and Trademarks administers the working of patent system in India through the Patents Act, 1970. Likewise every government authority has its own territorial jurisdiction; each patent office also has its own jurisdictional area for receiving applications for patent matters. Each office can act according to all sections of the patent act. It can perform its functions and duties as provided by the act but has to keep its operations in conformity with other statutes and rules.

Patent Laws in India:

The legislation with respect to patent laws in India is the Patents Act, 1970. The act comprise of 163 Sections spread across 23 Chapters. In addition to this it also contains 5 schedule's making the act more concise and easy to comprehend.

Hereinafter are being mentioned a little bit of fundamental laws in the Patents Act, 1970.

Section 2(1)(j):

This clause defines the word 'invention' for which the whole concept of patents is developed year over years. Under this section of the act 'an invention refers to a new product or process which involves an idea of an inventive step and is capable of industrial application'.

Section 2(1)(m):

This clause speaks about what a patent is intended to be meant under the act. Patent means 'a patent for any invention granted under this act'.

Section 3 and Section 4:

These section's both together enunciate the list of product or process which are not inventions therefore not subjected to obtain a patent. If an invention doesn't come under any of the heads specified in section 3 and section 4, then it can be patented under the Patents Act, 1970.

According to WIPO 'a patent is an exclusive right granted for an invention which is a product or a process that provides a new way of doing something, or offers a new technical solution to a problem'.

The basic criteria for providing patent to an invention is based on three prerequisites:

  1. It must be novel. {Section 2(l) of the act}
  2. It must be an inventive step. {Section 2(ja) of the act}
  3. It must be capable of industrial application. {Section 2(ac) of the act}

Section 6 of the act provide with the list of persons by whom an application for a patent can be filed.
These person's are:
  1. True and first inventor;
  2. Assignee;
  3. Legal representative.

Such application can be made by any of the persons stated herein either alone or jointly with any other person.
Section 10 of the act contains the contents of specification which needs to be mentioned in the patent application.
Those contents are as follows:
  1. Title of inventions subject matter.
  2. Drawings, model, sample, etc.
  3. Inventions usage.
  4. Date of application filing.
  5. Abstract of technical information on invention.
  6. Detailed description of invention.

Term of Patents:
The term of every granted patent shall be twenty years from the date of filing application for such patent (section 53 of the act). It has to be kept in mind that renewal fee has to be paid annually to keep the patent alive.

Rights of Patent Holder:

A patent holder has the following right's in respect of his patent:
  1. Right to exploit or utilize
    A patent holder has an exclusive right vested in him to use or sell his invention during term of the patent. He may also authorize any other person to exploit his invention by way of an agreement.

  2. Right to licensing
    The owner of the patent may in his discretion grant license to other parties so that his technology/ invention can be putted to use.

  3. Right to sue for infringement
    The patent holder can initiate proceedings for his patent's infringement.

  4. Right to surrender
    Under section 63 of the act, the patent holder may surrender his patent

Opposition to Patent:

There may be a possibility that the invention for which patent application has been filed already exists but was not in the knowledge of the larger world. It might be confined to a remote place or group of people who are not so social.

If any application for opposition is filed by an outsider person relating to such confined method and claims that method to be his own or of someone else who he knows to be of, then after inspection the patent application may be opposed. The grounds mentioned in section 25(1) and section 25(2) can be taken in use for opposition.

Patent Infringement and Remedies:

Patent infringement primarily involve unauthorized usage, sale, import, etc. of any patented subject. Any kind of court proceedings for patent infringement will be initiated only after the patent has been granted. Patent infringement basically means use of a patented subject matter without the consent of its owner.

Let us understand the concept of patent infringement with the help of an example:
Imagine in your mind a situation where if an unknown person uses your kitchen without your permission. This matter will be considered as a case of trespass which in patent law terms is known as infringement.

Like whenever an offense is tried in the court of law, the aggrieved party is entitled to remedies. Similarly when a case of patent infringement arise, the aggrieved party will be indemnified.

The remedies available to the affected party may include:
  1. Monetary relief - Compensatory damages are given to the affected party from such unauthorized usage of the patent.
  2. Equitable relief - This is similar to injunctions. The court orders the person making such unauthorized use to stop him from doing so any further.

Conclusion And Our Views:
With an ever-expanding boom in the area of technology, new inventions are being created faster than ever and will be done so in the coming future. The exigency of patent laws will be larger than ever; to curb this need patent laws must be amended time to time So there is no discrepancy among patent laws and other laws. A substantial rise has been seen in patent filings in near past and these filings will increase in the coming times.

To keep the inventors building new innovations and keeping their interests safe, it's the government's duty to provide more stringent shielding to their intellectual property. The government must amend the existing laws timely and try to make new ones to stand at par with other nations. Intellectual Property of a company is indispensable to develop and maintain a successful business. In order for the biotechnological companies to succeed, Intellectual Property protection in the form of patents is crucial as it encourages them to develop new medicines and treatments for diseases.

This protection benefits the owner as well as adds importance to the industry as well as business and also provides incentives for the private sector to invest in their developments. Trade secrets and patents are inordinately valuable to a company, mainly because they give an edge in the competitive market.

  1. Intellectual Property Rights in India by Virendra Kumar Ahuja.
  2. Intellectual Property Law by P. Narayanan.
  3. Intellectual Property Rights by N. S. Sreenivasulu.
  4. Indian Patent Act, 1970 Bare Act.
Written By:
  1. Aryan Tomar, 3rd Law Student 2020 And
  2. Hrithik Kumar, 3rd Law Student 2020

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